Published on 6 April 2021

SECOND SECTION

Application no. 117/18 Hüseyin KESK İ N against Turkey and 83 other applications (see list appended) communicated on 19 March 2021

STATEMENT OF FACTS

1 . A list of the applicants is set out in the appendix.

2 . The facts of the case, as submitted by the applicants, may be summarised as follows.

3 . The relevant background information regarding the attempted coup d ’ état of 15 July 2016, and the developments that followed that attempt, may be found in the case of Baş v. Turkey (no. 66448/17, §§ 6-14, 3 March 2020).

(a) The applicants ’ arrest and pre-trial detention

4 . On 16 July 2016, the Bureau for Crimes against the Constitutional Order at the Ankara public prosecutor ’ s office launched a criminal investigation into the attempted coup d ’ état. Acting on the instructions of the Ankara public prosecutor ’ s office, regional and provincial prosecutors ’ offices also initiated criminal investigations in respect of individuals suspected of being involved in the attempt and others who were not directly involved but were alleged to have links to the FETÖ/PDY ( Fetullahist Terrorist Organisation / Parallel State Structure), which was considered to be behind the attempted coup d ’ état.

6 . Objections lodged by the applicants against the detention orders were dismissed by other magistrates ’ courts, in terms similar to the initial decisions.

(b) Decisions on the continuation of the applicants ’ pre-trial detention and the dismissal of their objections

7 . The applicants ’ continued pre-trial detention was reviewed automatically pursuant to Article 108 of the CCP, which provides for a review every thirty days. The judges ruled on the applicants ’ requests for release at the same time as the automatic periodic review of their detentions, pursuant to Article 3, paragraph 1 (ç), of Legislative Decree no. 668.

8 . In most cases, the magistrates ’ courts ordered the prolongation of the applicants ’ detention in the course of its automatic periodic review conducted in respect of several suspects together. In their decisions, they essentially repeated the reasons given to justify the initial pre-trial detention. They noted that a large proportion of those suspected of being members of FETÖ/PDY had fled and were still wanted. Taking into account the resources available to that organisation and its characteristics, the judges considered that there was a risk that the applicants might abscond, tamper with evidence and reoffend if released. The judges also stressed the seriousness of the terrorism-related offences with which the applicants were charged and the fact that not all the evidence had yet been collected. They concluded that the decisions to continue the detention were justified in the light of the information, documents and evidence in the investigation files. They added that given that there was still a clear and imminent danger associated with the attempted coup d ’ état, continued detention appeared to be a proportionate measure.

9 . Objections lodged by the applicants against the prolongation of their detention were rejected by the magistrates ’ courts, which largely relied on the grounds indicated in their previous decisions.

10 . At the investigation stage, both the requests made by the public prosecutors for the extension of the detentions, and the applicants ’ objections to their continued detention, were examined on the basis of the case files, pursuant to Article 6, paragraph 1, subparagraph ı, of Legislative Decree no. 667.

11 . During the course of the subsequent trial stage, the first-instance courts, ruling either at the end of the hearings or at reviews carried out between the hearings, ordered the applicants ’ continued detention and dismissed the requests for release on grounds similar to those noted above.

12 . On various dates, the first-instance courts convicted some of the applicants of membership of a terrorist organisation. According to the latest information in the case files, the criminal proceedings against the remaining applicants are still pending before the first-instance courts.

(c) Individual applications to the Constitutional Court

13 . The applicants each lodged one or more individual applications with the Constitutional Court. On different dates, the Constitutional Court declared those applications inadmissible. The various complaints submitted by the applicants were declared inadmissible by the Constitutional Court on the following grounds:

14 . With regard to the lawfulness of the applicants ’ detention, the Constitutional Court noted that, according to the indictments and/or the investigation files, most of the applicants were users of ByLock . It considered that, given the characteristics of that messaging application, its use, or its downloading for use, could be reasonably considered by the investigating authorities as evidence of a link with FETÖ/PDY. It referred in this connection to its judgment in the case of Aydın Yavuz, delivered on 20 June 2017, where the use of that encrypted messaging application had been considered, depending on the circumstances of the case, as “strong evidence” of the commission of the offence of membership of FETÖ/PDY. Consequently, it could not be concluded that the investigating authorities or the courts that had decided on the applicants ’ detention had acted arbitrarily. In addition, taking into account the reasons provided to justify detention, the Constitutional Court found that those measures were justified and proportionate. It therefore considered the applicants ’ grievances in this regard to be manifestly ill-founded. As concerns some of the applicants, the Constitutional Court moreover noted that the indictments and/or investigation files contained witness statements or other pertinent evidence suggesting their membership of FETÖ/PDY, which demonstrated that they had been detained on the basis of “reasonable grounds to suspect” that they had committed an offence.

16 . As for the restriction on access to the investigation files, the Constitutional Court considered, after examining the transcripts of the hearings, the decisions relating to the applicants ’ detention, the objections lodged against those decisions, and the documents and information contained in the investigation files, that the applicants had been informed of the elements that constituted the main grounds for their detention, that they had had sufficient knowledge of their content and that they had been given the opportunity to challenge the decisions ordering their detention. Therefore, it similarly found those complaints to be manifestly ill-founded.

17 . The Constitutional Court rejected the complaints lodged by some of the applicants concerning the lack of an oral hearing during the review of detention, the non-notification or belated notification of the detention decision, and the lack of or delay in the examination of the case by the magistrates ’ courts on the grounds that they had failed to use the compensation remedy provided for by Article 141 of the CCP.

18 . The Constitutional Court dismissed any remaining complaints raised by the applicants on the grounds that they had not used the appropriate remedies.

19 . The relevant domestic law and practice are set out in the cases of Mehmet Hasan Altan v. Turkey (no. 13237/17, §§ 56-80, 20 March 2018) and Baş (cited above, §§ 52-104).

COMPLAINTS

20 . The applicants complained of a violation of Article 5 of the Convention on the basis of the following allegations (see the appended table for detailed information as to the specific complaints raised by each applicant):

- They had been detained in the absence of any suspicion that they had committed an offence;

- There had been no relevant and sufficient reasons to justify their initial and/or continued pre-trial detention;

- The length of their pre-trial detention had been excessive;

- The reviews of detention had taken place without a hearing and they had not been notified of the opinion of the public prosecutor on those reviews;

- Their access to the investigation files had been restricted;

- The objections to their detention or their requests for release had not been examined or examined belatedly;

- The decisions extending their pre-trial detention had not been notified to them, or had been notified with a delay, which had prevented them from appealing against those decisions;

- They had not benefited from effective legal assistance and facilities to challenge their detention, having particular regard to the fact that their communication with their lawyers had been monitored by the prison authorities;

- The time taken by the Constitutional Court to conduct its examination on their individual applications had been excessive.

QUESTIONS TO THE PARTIES

On the basis of the complaints communicated in accordance with the list in the Appendix

1. Can the applicants be considered to have been detained on the basis of “a reasonable suspicion” that they had committed an offence (see, in particular, Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A No. 182), taking into account, in particular, Article 100 of the Code of Criminal Procedure, which requires “concrete evidence demonstrating the existence of strong suspicions” as to the commission of the offence?

Moreover, has the Constitutional Court based the existence of reasonable suspicion on evidence discovered after the decisions had been taken to detain the applicants?

2. a. Did the applicants exhaust the remedies available in domestic law in relation to their complaints under Article 5 § 3 of the Convention? To the extent that the applicants ’ complaints did not relate solely to the length of their pre-trial detention but also concerned the alleged failure of the domestic courts to provide relevant and sufficient reasons to justify their initial and continued pre-trial detention, can a compensation claim under Article 141 § 1(d) of the Code of Criminal Procedure be regarded as an effective remedy in respect of those complaints (see Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, § 213, 22 December 2020)?

The Government are invited to provide sample decisions to demonstrate whether the remedy under Article 141 § 1(d) of the Code of Criminal Procedure has been interpreted and applied by the national courts in manner that extends to complaints concerning the lack of relevant and sufficient reasons to justify pre-trial detention.

b. Was the applicants ’ pre-trial detention compatible with the requirements of Article 5 § 3 of the Convention? In particular:

i . Did the judges, who ordered the applicants ’ initial pre-trial detention and the prolongation of their detention, and who examined the objections lodged against those decisions, fulfil their obligation to provide relevant and sufficient grounds for the deprivation of liberty in question (see, in particular, Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 102, ECHR 2016 (extracts))?

ii. Was the length of the applicants ’ pre-trial detention in breach of the “reasonable time” requirement under Article 5 § 3 of the Convention?

3. Did the applicants have at their disposal a remedy by which they could challenge the lawfulness of their deprivation of liberty, as required by Article 5 § 4 of the Convention? In particular, the Government are invited to respond to the following complaints made by the applicants:

i . the principle of equality of arms had not been respected, as the decisions to extend their detention and their objections to those decisions had been examined without a hearing and the prosecutors ’ opinions had not been communicated to them;

ii. they had been unable to challenge their detention in an effective manner because of the restriction imposed on their access to the investigation file;

iii. their objections to their detention had not been examined or had been examined belatedly;

iv. the decisions to extend their detention had not been notified to them or had been notified with a delay, which had prevented them from lodging objections against those decisions;

v. they had had no effective legal assistance or facilities to challenge their detention, having particular regard to the fact that their communication with their lawyers had been monitored;

vi. the time taken by the Constitutional Court to examine their individual applications had been protracted.

4. Did the compensation remedy provided under Article 141 of the Code of Criminal Procedure constitute an effective remedy, within the meaning of Article 5 § 4 of the Convention, in respect of complaints concerning ( i ) the lack of an oral hearing during the review of detention; (ii) the non-notification or belated notification of the detention decision; and (iii) the lack of or delay in the examination of the objection against detention by the magistrates ’ courts?

The Government are invited to provide sample domestic court decisions in support of their reply.

APPENDIX

No.

Application no. Case Title ID no.

Date of Intro

Complaints for each application

1

117/18 Keskin v. Turkey

06/12/2017

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

2

174/18 Aymaz v. Turkey

05/12/2017

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

3

352/18 Genç v. Turkey

28/11/2017

Length of pre-trial detention Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

4

356/18 Kılıç v. Turkey

29/11/2017

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

5

747/18 Demir v. Turkey

07/12/2017

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

6

2690/18 PaÅŸaalioÄŸlu v. Turkey

19/12/2017

Length of pre-trial detention Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

7

2859/18 Åžeker v. Turkey

21/12/2017

Length of pre-trial detention Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention Lack/Difficulties of legal assistance/other facilities

8

3279/18 BaÅŸar v. Turkey

26/12/2017

Length of pre-trial detention Lack of hearing during the detention review Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

9

3454/18 Yurdaer v. Turkey

08/12/2017

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

10

4634/18 Eker v. Turkey

13/07/2017

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

11

4640/18 ErÄŸun v. Turkey

13/07/2017

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

12

4722/18 Yılmaz v. Turkey

13/07/2017

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

13

5936/18 Hanay v. Turkey

25/04/2017

Length of pre-trial detention Delay in examination by the Constitutional Court Failure/Delay in examining requests for enlargement/objection Lack of hearing during the detention review Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

14

6388/18 Kocaman v. Turkey

18/01/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

15

6731/18 Biliyor v. Turkey

09/01/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

16

6769/18 Olcay v. Turkey

09/01/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

17

6959/18 BaÅŸ v. Turkey

24/01/2018

Length of pre-trial detention Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack/Difficulties of legal assistance/other facilities Lack of reasonable suspicion

18

7942/18 Atılgan v. Turkey

23/01/2018

Length of pre-trial detention Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

19

8899/18 TaÅŸ v. Turkey

02/06/2017

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

20

8901/18 Girgin v. Turkey

02/06/2017

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

21

8903/18 YaÅŸar v. Turkey

02/06/2017

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

22

8906/18 Arslan v. Turkey

23/05/2017

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

23

8912/18 Yıldız v. Turkey

06/07/2017

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

24

8913/18 Teyran v. Turkey

23/06/2017

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

25

9581/18 KumaÅŸ v. Turkey

13/02/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion Lack of reasonable suspicion

26

9583/18 Akbulut v. Turkey

13/02/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

27

9588/18 Yıldırım v. Turkey

13/02/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

28

9869/18 Yıldız v. Turkey

26/01/2018

Length of pre-trial detention Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

29

9947/18 Çamcı v. Turkey

29/01/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

30

9954/18 Gelir v. Turkey

29/01/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

31

9957/18 Arslan v. Turkey

29/01/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

32

9965/18 Kaya v. Turkey

29/01/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

33

9969/18 Güler v. Turkey

29/01/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

34

9975/18 Ayer v. Turkey

29/01/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

35

9982/18 Eren v. Turkey

29/01/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

36

10286/18 Güneyisi v. Turkey

06/02/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

37

10405/18 Arı v. Turkey

30/01/2018

Length of pre-trial detention Delay in examination by the Constitutional Court Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

38

10609/18 Kara v. Turkey

12/02/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

39

10618/18 Gözüaçık v. Turkey

02/02/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

40

10648/18 Bilsel v. Turkey

13/02/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

41

10653/18 Tunçkol v. Turkey

13/02/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

42

10852/18 Sancar v. Turkey

02/02/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

43

11782/18 Çakır v. Turkey

14/02/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

11786/18 Ören v. Turkey

27/02/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

12210/18 Turan v. Turkey

23/02/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

12314/18 Sargın v. Turkey

26/02/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

47

12409/18 Yılmazlar v. Turkey

01/03/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

48

12565/18 AydoÄŸan v. Turkey

16/02/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

49

12602/18 Yıldırım v. Turkey

13/02/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

50

12628/18 Göksu v. Turkey

05/03/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Restriction of access to the investigation file Lack of reasonable suspicion

51

12631/18 Tufan v. Turkey

08/03/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

52

13649/18 Tayman v. Turkey

09/03/2018

Length of pre-trial detention Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

53

13739/18 Åžahin v. Turkey

19/03/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

54

14500/18 Altay v. Turkey

16/03/2018

Length of pre-trial detention Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

55

14565/18 Özer v. Turkey

16/03/2018

Length of pre-trial detention Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

56

14817/18 Acar v. Turkey

07/03/2018

Length of pre-trial detention Delay in examination by the Constitutional Court Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

15433/18 Kaya v. Turkey

22/03/2018

Length of pre-trial detention Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention

58

26339/18 Hayal v. Turkey

27/05/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

59

26411/18 Özyapı v. Turkey

30/05/2018

Length of pre-trial detention Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

60

27123/18 Koçak v. Turkey

01/06/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

61

40844/18 Metin v. Turkey

16/08/2018

Length of pre-trial detention Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention Lack/Difficulties of legal assistance/other facilities Lack of reasonable suspicion

62

40911/18 Can v. Turkey

10/08/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

63

41230/18 Pekkürkcü v. Turkey

18/08/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

64

41526/18 Atak v. Turkey

06/08/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

65

41846/18 Åženliler v. Turkey

17/08/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

66

41856/18 Pınarakar v. Turkey

14/08/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

67

42184/18 BoÄŸur v. Turkey

29/08/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

68

42238/18 Dolaşık v. Turkey

27/08/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

69

42247/18 Sevinç v. Turkey

13/08/2018

Length of pre-trial detention Lack of hearing during the detention review Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

70

42307/18 Åžahin v. Turkey

15/08/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

71

42430/18 Bedir v. Turkey

03/09/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

72

42591/18 Demir v. Turkey

27/08/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of hearing during the detention review Restriction of access to the investigation file Lack of reasonable suspicion

73

42673/18 Kural v. Turkey

31/08/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

74

42857/18 DilcioÄŸlu v. Turkey

28/08/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

75

42858/18 Alıcı v. Turkey

28/08/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

76

42872/18 Gülten v. Turkey

14/08/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

77

42882/18 Çalışkan v. Turkey

29/08/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

78

42887/18 Köroğlu v. Turkey

06/08/2018

Length of pre-trial detention Lack of hearing during the detention review Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

79

42901/18 Kara v. Turkey

06/09/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

80

43165/18 Ebcim v. Turkey

03/09/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

81

43671/18 Ceran v. Turkey

03/09/2018

Length of pre-trial detention Restriction of access to the investigation file Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

82

43712/18 Durdu v. Turkey

29/08/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

83

43864/18 BaÅŸ v. Turkey

29/08/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Lack of reasonable suspicion

84

43979/18 Küçük v. Turkey

03/09/2018

Length of pre-trial detention Lack of relevant and sufficient reasons for detention Restriction of access to the investigation file Lack of reasonable suspicion